Free Motion to Expedite - District Court of Colorado - Colorado

Case 1:01-cv-02199-MSK-MEH

Document 450

Filed 03/13/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 01-cv-02199-MSK-MEH MICHAEL E. CLAWSON and JARED L. DILLON, Plaintiffs, v. MOUNTAIN COAL COMPANY, L.L.C., ARCH WESTERN RESOURCES, L.L.C., and ARCH COAL, INC., Defendants.

PLAINTIFFS' MOTION FOR EXPEDITED BRIEFING

The plaintiffs, Michael E. Clawson and Jared L. Dillon, through their undersigned counsel, Killian, Guthro & Jensen, P.C., hereby submit their Motion For Expedited Briefing, and in support thereof, state as follows: Certificate of Conferral Pursuant to D.C.COLO.LCivR 7.1 On March 12, 2007, plaintiffs' counsel sent an e-mail to defense counsel asking to receive defendants' position on this motion as soon as possible. On March 13, 2007, plaintiffs received an e-mail stating that defendants were opposed to an expedited briefing schedule on plaintiffs' motion for discovery sanctions. 1. On January 24, 2007, this court set an evidentiary hearing for March 27, 2007, on

the subject of the number of individuals Arch Coal, Arch Western Resources, and Mountain Coal collectively employed. The order apparently overruled plaintiffs' objection to the defendants

Case 1:01-cv-02199-MSK-MEH

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submitting evidence that was not disclosed pursuant to Fed. R. Civ. P. 26(a). As plaintiffs understand it, the basis of the order was that plaintiffs had the opportunity to conduct discovery on the subject of the number of employees, and that defendants were therefore excused from the disclosure requirements. 2. On March 7, 2007, plaintiffs filed a motion to exclude evidence at the March 27,

2007, hearing as a discovery sanction based on defendants' failure to supplement discovery. (Docket No. 449). Plaintiffs had sent discovery requests regarding the number of employees. Plaintiffs' position is that all of the defendants had a duty to provide supplemental responses to these requests, and that this duty was separate and in addition to the duty to disclose. 3. Defendants would normally be allowed twenty days, plus three, to respond to

plaintiffs' motion. Fed. R. Civ. P. 6(e); D.C.COLO.LCivR 5.6(C); 7.1(C). Plaintiffs would then have fifteen days, plus three, to reply. D.C.COLO.LCivR 5.6(C); 7.1(C). Local Rule 7.1(C) allows the court to direct a "lesser or greater time" for responding or replying to a motion. D.C.COLO.LCivR 7.1(C). The court therefore has authority to direct an expedited briefing schedule. 5. Plaintiffs request that defendants be required to file their response to plaintiffs'

motion (Docket No. 449) within fourteen days, or by March 21, 2007. Plaintiffs request that they be given until March 23, 2007, to submit a reply. The court should order expedited briefing to ensure that the issue is fully briefed in advance of the March 27, 2007, hearing. This is important because plaintiffs' motion addresses evidence that may be submitted at the hearing. Plaintiffs assert that it would be preferable to have the issue fully briefed, with authorities provided, than to attempt to raise and address the issue for the first time orally at the hearing. 2

Case 1:01-cv-02199-MSK-MEH

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WHEREFORE plaintiffs respectfully request that the court order defendants' response to plaintiffs' motion for discovery sanctions (Docket No. 449) be filed no later than March 21, 2007, and that plaintiffs' reply be filed no later than March 23, 2007, and that the order requiring expedited briefing be entered by March 16, 2007. RESPECTFULLY SUBMITTED this 13th day of March, 2007.

s/ Damon Davis J. Keith Killian Damon Davis Killian, Guthro & Jensen, P.C. 225 N. 5th Street Grand Junction, CO 81501 Telephone: (970) 241-0707 FAX: (970) 242-8375 E-mail: [email protected] Attorney for Plaintiffs Michael E. Clawson and Jared L. Dillon

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Case 1:01-cv-02199-MSK-MEH

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UNITED STATES DISTRICT COURT FOR THE DISTRIT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on March 13, 2007, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following e-mail addresses: [email protected] [email protected] and, I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participants in the manner (mail, hand-delivery, etc.) indicated by the non-participant's name: Mr. Michael Clawson 38506 Back River Road Paonia, CO 81428 Mr. Jared Dillon 35404 Back River Road Hotchkiss, CO 81419 Mail

Mail

s/Damon Davis Damon Davis Attorney for Plaintiffs Killian, Guthro & Jensen, P.C. 225 N. 5th Street Grand Junction, CO 81501 Telephone: (970) 241-0707 Fax: (970) 242-8375 [email protected]

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